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States Can't Regulate Immigration, but They Can Regulate Illegal Immigrants: Remarks at the 2012 Charleston Law Review and Riley Institute Law and Society Symposium

State governments, feeling tremendous pressure from their citizens to address the consequences of the federal failure to meet this nation’s immigration needs, are acting for themselves. Arizona is the tip of the spear, but we’ve also seen various other immigration-related laws passed in states as different as Utah, Georgia, California, and South Carolina. It’s understandable that states have been passing these laws because Congress has fallen down on the job. This is a unique policy area in that sense; voters are mad and want someone to do something.

I don’t blame the states, or the voters, or even illegal immigrants who are merely seeking a better life for their families. I blame elected federal elected officials from both parties. Whether related to enforcement, expanded work permits, sanctuary cities, or other types of policy innovations, Congress’s abdication of its duty to manage our immigration system has spawned a host of federalism experiments. It’s a perfectly understandable political dynamic.

But none of this speaks to the constitutionality of all the laws these different states have been passing. I think most of them are constitutional. They are terrible policy for various reasons — from economic effects to the misuse of law enforcement resources — but that’s a separate question from their constitutionality. Legal scholars always enjoy the opportunity to point to something that they think is legal or constitutional that they think is bad policy. It makes us feel that we’re being intellectually honest. Well, this is my area of the law in that respect. I’m going to put on my “simple constitutional lawyer” hat, without regard to policy advocacy.